CHARLIE BROWN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 4th DCA | 2009-06-17
No. 4D07-5019
GROSS, C.J., WARNER and CIKLIN, JJ., concur.
12 So. 3d 877 Florida District Court of Appeal, Fourth District (2009) Positive Treatment
Cited by 11 cases

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Holding

The court held that the trial court erred in revoking probation based on insufficient evidence for several alleged violations, and remanded for reconsideration.


Headnotes

[1] Probation cannot be revoked solely on the basis of hearsay evidence.

[2] A willful and substantial violation of probation must be proven by competent, non-hearsay evidence.

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Facts & Procedural History

Appellant was found to have violated probation conditions, including committing new offenses and changing residence without consent. The trial court r…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Appellant, Charlie Brown, appeals the trial court’s order revoking his probation in two cases and imposing a sentence of 8.125 years as a habitual offender. The trial court found that Brown willfully and substantially violated six conditions of his probation-although we are compelled to find that the state proved only two of the six violations. Because we are unable to conclude that the trial court would have revoked Brown’s probation as to the two violations actually proven, we reverse the order revoking probation and remand this case to the trial court for further proceedings.

In 2003, Brown was charged with failure to register as a sex offender. In 2005, while the 2003 case was pending, he was charged with possession of heroin. Initially Brown was found to be mentally incompetent to stand trial. Subsequently, when he was found to be competent to proceed, he pled guilty to both charges and was sentenced concurrently to two years in prison followed by three years of probation. In April of 2007, a violation of probation affidavit was filed in both of the original cases alleging that Brown had violated probation by committing the two new offenses of obstruction without violence and failure of a sex offender to give notification of a change of address (counts I and II); changing his residence (on February 28, 2007) without the consent of his probation *879officer (count III); failing to report to the probation office after being instructed to report (count IV); changing his residence (on February 26, 2007) without the consent of his probation officer (count V); and failing to produce valid identification to the Department of Highway Safety and Motor Vehicles (“DHSMV”) for purposes of registration after being instructed to do so (count VI).1

On appeal, Brown concedes that the record supports the trial court’s finding that a violation occurred by twice moving without the probation officer’s consent (counts III and V).

As to counts I and II, there was scant evidence that appellant had been arrested for the new offenses, let alone that he actually committed the crimes. Although the prosecutor referred to a probable cause affidavit and said it was “self-authenticating,” no documents of any kind were ever admitted into evidence.2 The only testimony offered by the state came from Brown’s probation officer who testified that Brown committed two new criminal acts while on probation. The probation officer’s fleeting testimony (“He committed a criminal offense without violence, failed to notify sex offender, ... ”) renders the record devoid of anything that could reasonably lead to a finding that Brown committed two new crimes while on probation. In the light most favorable to the state, the probation officer’s twelve words of testimony, offered to support counts I and II, were pure hearsay and not supported by competent, non-hearsay proof. This court has consistently held that probation cannot be revoked solely on the basis of hearsay evidence. E.C. v. State, 675 So.2d 192 (Fla. 4th DCA 1996).

Count IV of the third amended affidavit for violation of probation alleged that Brown failed to report as directed “as of March 7, 2007.” The probation officer’s testimony regarding this alleged violation did not establish that Brown failed to abide by the requirement. In fact, it may show the opposite. In any case, the probation officer’s testimony was convoluted, contradictory and inconclusive. The state failed to prove this allegation under any standard.

As to the requirement that Brown register with the DHSMV (count VI), Brown testified that he went to the driver’s license office and was told that he needed a birth certificate in order to get a Florida identification card or otherwise register with the DHSMV. Brown’s unre-futed testimony was that he was unable to obtain a birth certificate in his home state of Georgia because the facility from which he could obtain a copy had burned down. The state offered no evidence of any nature to suggest that Brown’s failure to register or otherwise obtain a valid DHSMV identification card was willful.

We reverse the violations of probation on counts I and II (commission of the two new crimes), count IV (failing to report to the probation office after being instructed to report) and count VI (failing to produce valid identification to the DHSMV for purposes of registration after being instructed to do so) because there was simply insufficient evidence to show willful and substantial violations of probation. We affirm the violations of probation on counts III and V (changing residence without first procuring consent of the probation officer). We remand for the trial court to reconsider *880Brown’s probation revocation and subsequent sentence because it is unclear whether the trial judge would have decided this matter in the same manner if faced with these two violations rather than the six as Brown was originally found to have committed. See Wilson v. State, 967 So.2d 1107 (Fla. 4th DCA 2007).

Reversed and remanded.

GROSS, C.J., WARNER and CIKLIN, JJ., concur.


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Citator

Cited By

  • Latasia Webb v. State, 154 So. 3d 1186 (Fla. 4th DCA 2015)
    …entenced her to five years of imprisonment based upon a violation of condition 1 alone. We therefore remand with instructions that the trial court reconsider defendant’s probation revocation and sentence in light of this opinion. See Brown v. State, 12 So. 3d 877, 879-80 (Fla. 4th DCA 2009); Oertel v. State, 82 So. 3d 152, 157 (Fla. 4th DCA 2012). We leave to the trial court’s discretion the issue as to what sentence, if any, defendant should receive on remand. See Davis v. State, 474 So. 2d 1246, 1247 (Fla.…
  • Santiago v. State, 133 So. 3d 1159 (Fla. 4th DCA 2014)
    …o report for supervision and driving without a license, we remand with instructions that the trial court reconsider Defendant’s probation revocation and subsequent sentence, and enter a written order consistent with this opinion. See Brown v. State, 12 So. 3d 877, 879-80 (Fla. 4th DCA 2009); Oertel v. State, 82 So. 3d 152, 157 (Fla. 4th DCA 2012). Reversed and Remanded. STEVENSON and CIKLIN, JJ., concur.…
  • Walker v. State, 120 So. 3d 96 (Fla. 4th DCA 2013)
    …imprisonment solely based upon the remaining violations, we remand with instructions that the trial court reconsider Walker’s probation revocation and subsequent sentence, and then enter a written order consistent with this opinion. Brown v. State, 12 So. 3d 877, 879-80 (Fla. 4th DCA 2009); see also Oertel v. State, 82 So. 3d 152, 157 (Fla. 4th DCA 2012). We express no opinion as to what sentence, if any, Walker should receive on remand, and leave that issue to the trial court’s discretion. See Davis v. Sta…

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